Tarun Agarwala, J. - (1.) HEARD Sri Amit Manohar, the learned counsel for the petitioners and Shri H.K. Mishra, the learned counsel for the caveat or.
(2.) THE services of the workman, respondent No. 1 was terminated on a variety of charges. THE workman raised a reference. THE Labour Court gave an award directing reinstatement with 50% of back wages. THE employer, namely, the petitioners, filed writ petition No. 24502 of 2007 which was allowed by a judgment dated 23.5.07 and the award was set aside and the matter was remitted to the Labour Court to reconsider the matter. THE Court observed that when the Labour Court had recorded the finding that the domestic enquiry was vitiated, in that event, the Labour Court ought to have granted an opportunity to the employer to prove the charges and on this basis, the matter was remitted to the Labour Court. The Labour Court, after giving an opportunity to the employer to lead evidence, has again given an award directing reinstatement with 50% of back wages. The Labour Court found that the workman had not punctured the pipe of the Bus and consequently was not involved in the leakage of the diesel from the Bus. The Labour Court, while relying upon the domestic enquiry report held that the Regional Manager himself admitted that he was not assaulted by the workman concerned. The petitioners, being aggrieved by the said award, has again filed the present writ petition. The learned counsel for the petitioners submitted that the award of the Labour Court is incorrect because it has relied upon the evidence recorded in the enquiry report which enquiry report had already been set aside by the Labour Court, and therefore, the said finding of the Labour Court on the assault of the Regional Manager was patently erroneous. The learned counsel further submitted that the Labour Court has given a finding that the workman was gainfully employed a and consequently the award of 50% of the back wages was wholly erroneous.
(3.) IN my opinion, the submissions of the learned counsel for the petitioner is bereft of merit. No doubt, the Labour Court has relied upon a finding of the enquiry officer in his domestic enquiry report which enquiry report had been set aside by the Labour Court. Consequently, the Labour Court committed an error in relying upon the enquiry report. However, by relying upon this report, the award is not 6 vitiated. This Court finds that no evidence on the charge with regard to assault by the Regional Manager of the workman was led by the petitioners before the Labour Court. The Labour Court has given a categorical finding that in spite of repeated time being granted, the employer had failed to lead evidence. Consequently, this Court presumes that there was no evidence before the employer to lead evidence on this charge before the Labour Court. With regard to the gainful employment, the Court finds that the Labour Court has awarded 50% of back wages on the strength of the presumption that the workman must have been gainfully employed during the intervening period. This employment does not mean that the workman was gainfully employed as contemplated under Section 17-B of the Industrial Disputes Act. The life line of the workman was cut short by the employer when his services was terminated. The wages which the workman was drawing made him survive in this world and made both ends meet. The workman was forced to litigate in order to question the validity of the order of termination. The workman had no source of livelihood except whatever meagre savings that he had saved while in service. There is no finding or evidence brought on record by the employer that the workman was gainfully employed in an establishment. The mere fact that the workman became self employed and worked to make both ends meet does not mean that the workman becomes gainfully employed. For example, if the workman becomes a Coolie and works on the Railway Station or at a Bus stop or employs himself as a Rickshawpuller or opens a pan shop, does not mean that he has become gainfully employed in an establishment. This self employment was done so that the x workman could survive in the harsh world.;